Fuller v. State

• Citation: 363 P.3d 373
• Decision Date: 23 December 2015
• Docket Number: No. 108,714.,108,714.
• Parties: Raymond FULLER, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Supreme Court

363 P.3d 373

Raymond FULLER, Appellant,

v.STATE of Kansas, Appellee.

No. 108,714.

Supreme Court of Kansas.

Dec. 23, 2015.

Krystle M.S. Dalke, of Law Office of Michael P. Whalen, of Wichita, argued the cause, and Michael P. Whalen, of the same office, was with her on the brief for appellant.

Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by BEIER, J.:

Defendant Raymond Fuller challenges the Court of Appeals' decision affirming the district court judge's denial of his K.S.A. 60–1507 motion alleging ineffective assistance of counsel. Fuller argues that he was blindsided by his lawyer's aggressive questioning of him during his trial for rape, aggravated sexual battery, and aggravated burglary. He also challenges his lawyer's failure to call a witness who would have testified about the victim's flirtatious nature, and he asserts his lawyer had a conflict of interest at a hearing on a motion for new trial.

We recognize the conflict that existed between Fuller and his lawyer at the hearing on the motion for new trial and we fashion an appropriate remedy. We reject Fuller's other appellate arguments.

FACTUAL AND PROCEDURAL BACKGROUND

The charges against Fuller were based on allegations made by his next-door neighbor, C.K., after an encounter in C.K.'s home. Fuller admitted to sexual contact with C.K., but he defended on the basis that the contact was consensual.

The Court of Appeals panel summarized the conflicting trial testimony as follows:

"Fuller and the victim, C.K., were neighbors who had sporadic contact prior to the incident which resulted in charges against Fuller.... [T]he day prior to the incident, C.K. helped Fuller jump-start his vehicle....

....

"C.K. testified that at the time Fuller rang her doorbell, she was in her bathrobe and talking on the phone with her friend Brenon Odle. Her two children, ages 3 years and 22 months, were at home with her. C.K. told Odle to call her back in a few minutes and then stuck her head outside the door and told Fuller to ‘give [her] a minute.’ C.K. went to her bedroom to put some clothes on. Without C.K.'s permission, Fuller entered the house and walked into her bedroom doorway and told C.K., ‘I like what I'm looking at.’ Startled and caught off-guard, C.K. asked Fuller to give her ‘just a minute’ and directed him to wait in the living room. Fuller complied.

"C.K. finished dressing

and went to the living room, where she seated herself f[a]rthest from Fuller on the couch. C.K.'s children were also with them in the living room. Fuller told C.K. that he had some photographs on his cell phone that he wanted to show her. C.K. leaned across the couch and saw that the photographs were of Fuller's penis. As she leaned over, Fuller grabbed C.K.'s hair and pulled her head toward[ ] his lap. He then pulled C.K.'s shirt down, exposing her chest, and grabbed her breast. After removing his hand from her chest, Fuller put his hand inside C.K.'s shorts and placed his fingers inside her vagina.

"The encounter ended when the phone rang and C.K. answered it. Although it was Odle calling her back, C.K. told Fuller that her husband was on the phone, and that her husband knew Fuller was there and Fuller should ‘get the hell out of here.’ Fuller left, but only after telling C.K. that he would kill her if she told anyone what happened. C.K. then told Odle what had happened.

....

"Fuller testified that after he rang the doorbell, C.K. smiled and invited him in, and the two made ‘small talk’ as they walked to C.K.'s bedroom. Once in the bedroom, C.K. dropped her bathrobe and exposed herself to Fuller. Fuller retreated to the couch because the presence of C.K.'s children in the bedroom made him feel ‘weird.’ C.K. joined him on the couch and[,] after they talked briefly, C.K. exposed her vagina to him. Fuller admitted he placed his finger in C.K.'s vagina, but testified that C.K. smiled after he did so. Fuller then began performing oral sex on C.K. but stopped because the children were nearby. C.K. told Fuller she liked having her hair pulled, so Fuller playfully pulled her hair. Fuller agreed that the encounter ended when C.K.'s phone rang." State v. Fuller, No. 100,026, ––– Kan.App.2d ––––, 2009 WL 4639506, at *1–2 (Kan.App.2009) (unpublished opinion).

After Fuller's jury convicted him as charged, his lawyer, Quentin Pittman, filed a motion for new trial and a motion for judgment of acquittal, both attacking the sufficiency of the evidence. Fuller also filed a pro se motion, which the district judge construed as a motion for new trial, in which Fuller raised issues related to members of his jury. At the hearing on the motions, Pittman described the trial as "extremely clean." The district judge ruled that sufficient evidence supported the convictions and denied the two motions Pittman had filed.

The district judge then turned to Fuller's motion. Pittman suggested that Fuller should argue his motion because "we kind of get into a mine field." Fuller's oral statement included issues beyond those in his written motion. He argued that his jury was not impartial, that the State had violated an order in limine, and that Pittman had failed to put on evidence in Fuller's defense. When the judge asked Pittman if he had anything to add to Fuller's argument, Pittman said that he had "a slightly different take on those issues." Pittman then defended his decisions about the evidence to put on at trial as strategic calls properly within the province of defense counsel. Pittman also defended his juror selections as strategic decisions and said he thought Fuller might "be mistaken in his recollection of several things."

Characterizing Fuller's arguments as allegations of ineffective assistance of counsel, the district judge concluded that—"for the reasons expressed by Mr. Pittman"—the challenged decisions qualified as trial strategy and did not support a finding of ineffective assistance of counsel.

On direct appeal before the Court of Appeals, Fuller asserted that "his trial counsel was so grossly ineffective that he entirely failed to subject the prosecution's case to meaningful adversarial testing," Fuller, 2009 WL 4639506 at *1, supporting this assertion with specific arguments different from those he raised before the district court. In particular, Fuller attacked Pittman's tone during Fuller's direct examination at trial and Pittman's failure to advocate for Fuller at his motion for new trial hearing. 2009 WL 4639506, at *5. A panel of the Court of Appeals declined to address the allegations because the record on appeal was not sufficiently developed, but it noted that "some of Fuller's allegations, viewed from a cold record, are troubling." 2009 WL 4639506, at *5. The panel said that Fuller could challenge Pittman's effectiveness through a later motion under K.S.A. 60–1507.

As contemplated by the panel, Fuller filed a K.S.A. 60–1507 motion. In it he argued that Pittman had been ineffective: (1) by the way he conducted his direct examination of Fuller, (2) by failing to object to a jury instruction, (3) by failing to request a lesser included offense instruction, (4) by failing to argue in support of Pittman's motion for new trial, (5) by arguing against Fuller's pro se motion for new trial, (6) by failing to object to the prosecutor's cross-examination of Fuller, (7) by failing to strike two jurors, (8) by failing to discredit C.K., and (9) by failing to subpoena a witness who could have testified about C.K.'s flirtatious nature.

The district judge held a preliminary, nonevidentiary hearing on the motion. At the hearing, counsel for Fuller argued the motion and requested a full evidentiary hearing on the issues raised. The district judge denied relief on all but three of Fuller's allegations. The district judge ordered an evidentiary hearing on the claims that (1) Pittman was ineffective in his direct examination; (2) Pittman was ineffective in his advocacy at the motion for new trial hearing; and (3) Pittman was ineffective for failing to challenge two jurors.

At the evidentiary hearing, counsel for Fuller questioned Pittman about his use of cross-examination-style questions during Fuller's direct examination. Fuller had argued in his motion and had testified at the 1507 hearing that Pittman's "unorthodox" questions left Fuller confused, insinuated that he was guilty, destroyed his credibility, and were contrary to Fuller's theory of defense, i.e., that the sexual contact was consensual. Pittman testified that he had provided Fuller with a list of questions to review before Fuller testified and that the style of the questions was not reflected on the list. Pittman also conceded that he had not specifically prepared Fuller for the tone of the questions asked. When counsel for Fuller read questions from the trial transcript, Pittman agreed that he had asked the questions that were read.

Those questions included: "You are going over because you were going to have sex with her one way or the other, correct?"; "That's when you grab her?"; "That's when you say I want to fuck you?"; "Then you attack her?"; "That's when you grab her and attack her, right?"; "That's when you attack her?"; "That's when you jammed your finger into her vagina?"; "That's when you rip her shorts off?"; "[Y]ou then attack her, pull her hair and put your finger in her vaginal area, right?"; "You grab her by the back of the head and stick it towards your crotch?"; "That's when you said you tell anyone and I will fucking kill you?"; "Because you didn't tell the exact same story throughout that you eventually got to, you are a liar right?"; "I mean you raped her[?]" Pittman concluded his redirect examination with "And that's because you are a liar and rapist?"

Pittman testified that he asked these questions in order to "take away the sting of the accusation." He also said that he believed it...